Judgment:
1. The present appeals are directed against classification of "coal tub body" under Central Excise Ch. subheading 8607 and consequent demand of duty. The appellants have claimed classification of the goods under sub-heading 8609 of the Tariff. The contending sub-headings are extracted below to facilitate discussion."86.07 8607.00: Parts of railway or tramway locomotives or rolling stock.86.09 8609.00: Containers (including containers for the transport of fluids) specially designed and 2. The lower authorities classified the goods under sub-heading 8607 and held that the tub bodies could fall under "bodies (not mounted on under Frames" or non self propelled railways or tramway rolling stock (e.g. coach or truck doors, partitions, hinged sides of wagons, side stachions, running boards, water tanks for Tenders)" as mentioned at page 1419 of HSN Explanatory Notes. The impugned order has held that these items are parts of rolling stock.
3. As against the above finding in the impugned order, it has been submitted on behalf of the appellants that the coal tub body in question is manufactured specifically for use in coal mining. These are used for transporting coal out of the mine. According to the certificate of the Chartered Engineer, Shri S.K. Bhatia, the tub in question has a maximum carrying capacity 1.084 M.T. With regard to the classification of the goods, the learned Consultant has stressed that these are containers specially designed and are liable to classification under 8609 according to the General Notes at page 1413 under Chapter 86 of HSN. He also submitted mat the scope of 8609 is specifically explained at page 1421 of the same HSN Notes. He submitted that SI. No. 4 of the Note under 8609 specifically applies to "open containers for bulk transport of coal." The learned Consultant also pointed out that the impugned order is contrary to the practice in the Department itself, inasmuch as, the Commissioner of Central Excise, Indore had passed an Order classifying the goods under sub-heading No.8609. He also submitted that according to CEGAT's Order in the case of Central Coalfields Ltd. v. Collector of C. Ex., Jamshedpur [1999 (106) E.L.T. 476 (T)], coal tubs are classifiable under Chapter Heading 8606.
4. It is also the contention of the learned Consultant for the appellants that the Central Excise Authorities were bound by the order of the Commissioner, Indore classifying the goods under 8609 and they should not have passed an order contrary to the order of the Commissioner.
5. The learned DR has pointed out that the coal tubs in question are also mounted on locomotives, which moves on rails in the mines. It was, therefore, submitted that classification under 8607 was more appropriate.
6. Chapter 86 of the Central Excise Tariff covers tramway locomotives, or rolling stock and parts thereof; railway or tramway track fixtures and fittings and parts thereof; mechanical (including electro-mechanical) traffic signalling equipment of all kinds. SI. No.(E) under the General Notes at page 1413 of HSN mentions, "Containers specially designed" and equipped for carriage by one or more modes of transport as covered by 86.09. HSN Explanatory Notes to 8609 states as under :- RAILWAY OR TRAMWAY TRACK FIXTURES AND FITTINGS AND PARTS THEREOF; MECHANICAL (INCLUDING ELECTRO-MECHANICAL) TRAFFIC SIGNALLING EQUIPMENT OF ALL KINDS (a) Railway or tramway sleepers of wood or of concrete, or concrete guide-track sections for hovertrains (Heading No. 44.06 or 68.10); (b) Railway or tramway track construction material of iron or steel of Heading No. 73.02; or (c) Electrical signalling, safety or traffic control equipment of Heading No. 85.30.
(a) Axles, wheels, wheel sets (running gear), metal tyres, hoops and hubs and other parts of wheels; (d) Buffers for rolling-stock; hooks and other coupling gear and corridor connections; 3. Subject to the provisions of Note 1 above, Heading No. 86.08 applies, inter alia, to: (b) Semaphores, mechanical signal discs, level crossing control gear, signal and point controls, and other mechanical (including electro-mechanical) signalling, safety or traffic control equipment, whether or not fitted for electric lighting, for railways, tramways, roads, inland waterways, parking facilities, port installations or airfields.
This Chapter covers locomotives and rolling-stock, and parts thereof, and certain track fixtures and fittings, for railways or tramways of any kind (including narrow'gauge railways, single rail railways , etc.). It also covers containers specially designed and equipped for carriage by one or more modes of transport. Mechanical (including electro-mechanical) signalling, safety or traffic control equipment for traffic of all kinds (including that for parking facilities) is also covered.
Throughout this Chapter, the expressions "railway" and "tramway" refer not only to conventional railways and tramways using steel rails, but also to similar guided systems such as those using magnetic levitation or concrete tracks.
(A) Self-propelled railway vehicles of all types, such as locomotives, mo-torised railway or tramway coaches and rail-cars (Headings 86.01 to 86.03). Heading 86.02 also includes locomotive tenders. Locomotives operated by two types of power are classified in the heading corresponding to the main type of power used.
(B) Railway or tramway maintenance or service vehicles, whether or not self-propelled (Heading 86.04).
(C) Various types of hauled vehicles (railway or tramway passenger coaches and luggage vans, railway or tramway goods vans, wagons and trucks, etc.) (Headings 86.05 and 86.06).
(D) Parts of railway or tramway locomotives and rolling-stock (Heading 86.07), and also railway or tramway track fixtures and fittings, and mechanical (including electro-mechanical) equipment, for signalling to or controlling road, rail or other vehicles, ships or aircraft (Heading 86.08).
(E) Containers specially designed and equipped for carriage by one or more modes of transport (Heading 86.09)." 7. As pointed out by the learned Consultant appearing for the appellants, open containers for bulk transport of coal are specifically covered under 8609 in terms of the Note. The Note also mentioned that the capacity of similar types of containers is not normally less than 1 MT. The capacity of the coal tub in question has been certified to be little more than 1 MT. In view of the HSN Notes as mentioned above, we are of the opinion that the correct classification of the coal tub would be 8609 as such containers are specifically mentioned under Tariff Item 8609. It is also to be noted that the Commissioner of Central Excise, Indore had also classified the goods under 8609.
8. With regard to the appellant's submission that the Tribunal has upheld the classification of this Item under 8606, from a perusal of the judgment cited, we find that the issue of classification of coal tubs was not before the Tribunal in the case of Central Coalfields Ltd. It is noted in para 1.2.2 of the Order that "the appellant has been manufacturing coal tubs (T.S.H. 8606.00)". The dispute, however, was with regard to eligibility for certain exemptions and the Tribunal went on to consider the dispute raised before it taking it as agreed between the parties that classification of the item would be under Tariff sub-heading 8606. In view of this, the decision in the Central Coalfields Ltd. case is of no assistance in understanding the present dispute. Nor was this classification considered in the present proceedings. Accordingly the present appeals have,to be decided in terms of Chapter sub-heading 8607 and 8609 only.
9. The appeals are allowed with consequential relief to the appellant in view of our finding that the correct classification of coal tub is under Tariff sub-heading 8609.